The De Vilbiss Co.

National Labor Relations Board - Board Decisions

Nov 9, 1955

114 N.L.R.B. 945 (N.L.R.B. 1955)

THE DE VILBISS COMPANY 945
violation and are of a type which the Board will not determine in a
representation proceeding. Furthermore, Local 2288 has incorporated
these allegations in an unfair labor practice charge 4 which has been
dismissed by the General Counsel. Under the circumstances, we find
no merit in these allegations.-' As to allegation (d) in objection No. I,
the report on objections discloses that, although afforded ample oppor-
tunity to do so, Local 2288 failed to submit evidence in support of this
allegation. In view of the well-established rule that the Board will not
attempt to evaluate an allegation unsupported by evidence,' we, find
this allegation to be without merit. In agreement with the Regional
Director, we overrule objection No. I.
Objections Nos. II and III concerning compliance are directed to
the Board's Decision and Direction of Election and to the Board's
Order reinstating its Decision and Direction of Election, rather than
to any conduct in connection with the election. As these objections do
not raise any matters not heretofore considered, we find, in agreement
with the Regional Director, that they are without merit. These objec-
tions are therefore overruled.7
As the Petitioner received a majority of the valid ballots cast in the
election, we shall certify it as the exclusive bargaining representative
of all®employees in the appropriate unit.
[The Board certified Independent Metal Workers of America, as
the designated collective-bargaining representative of the employees
of the Employer, in the unit heretofore found by the Board to be ap-
propriate.]
MEMBER. MumocK took no part in the consideration of the above Sup-
plemental Decision and Certification of Representative.
Case No. 21-CA-2122.
Garner Aviation Service Corporation and Lynchburg Air Transport and Sales Corpora-
tion, d/b/a Garner Aviation Service Corporation, 114 NLRB 293.
' N. B. Liebman & Company, Inc., 112 NLRB 88.
Globe Steel Tubes Co., 103 NLRB 1197, at p. 1198.
The De Vilbiss Company and Richard Glenn Platt, Petitioner and
International Union, United Automobile , Aircraft & Agricul-
tural Implement Workers of America (UAW-CIO) and Its
Local Union No . 1237. Case No. 6-RD-119. November 9,1955
SUPPLEMENTAL DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
Pursuant to a Decision and Direction of Election issued August 11,
1955,1 an election by secret ballot was conducted on August 25, 1955,
among the employees of the Employer in the unit found appropriate
1 Not reported in printed volumes of Board Decisions and Orders.
114 NLRB No. 148.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Board. At the conclusion of the election, a tally of ballots was
furnished the parties in accordance with the Board's Rules and Regu-
lations. The tally showed that of approximately 46 eligible voters, 45
cast ballots, 20 cast ballots for, and 22 cast ballots against, the partici-
pating labor organization. There were three challenged ballots.
On August 25, 1955, the International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America (UAW-
CIO) and its Local Union No. 1237, herein called the U. A. W., filed
timely objections to conduct affecting the results of the election. The
Regional Director investigated the objections and challenges and on
September 27, 1955, served upon the parties his report on objections
and challenged ballots.' In his report on the objections, he recom-
mended that the election be set aside and that a new election be
directed. Thereafter, the Petitioner and the Employer filed timely
'exceptions to the Regional Director's report on the objections.
The Board, having considered the Regional Director's report on
objections, the exceptions, and the entire record in the case, hereby
adopts the findings, conclusions, and recommendations of the Regional
Director.
The U. A. W.'s objections allege that the Petitioner circulated a
document among the employees which purported to be a sample copy
of the Board's official ballot, but which had been altered by placing an
"X" in the "NO" box thereon. The Regional Director found that the
alteration of the sample ballot in these circumstances violated the rule
set forth in Allied Electric Products, Inc.,' forbidding the distribu-
tion of marked sample ballots for campaign purposes. It is not dis-
puted that on August 23, 1955, at 5 p. in. the Petitioner mailed or
caused to be mailed to the eligible employees of the De Vilbiss Com-
pany a circular, containing a sample facsimile of the Board's official
ballot with an "X" marked in the "NO" square. On August 24, 1955,
at approximately 4: 30 p. in. at the close of the work shift, the Peti-
tioner distributed or caused to be distributed at the plant gates to
each employee working that day a second circular stating that the first
circular was not intended to imply that the National Labor Relations
Board approved the material contained in that document or that the
National Labor Relations Board was in any way taking a partisan
position in the election. This circular added, "The National Labor
2 He reported that all parties to the election had agreed that Rose Tokar, a former
employee who cast one of the challenged ballots, terminated her employment prior to the
election and was ineligible to vote He therefore recommended that the challenge to this
ballot be sustained As the remaining challenged ballots are not sufficient in number to
affect the results of the election, he found it unnecessary to make a determination as to
them No exceptions have been filed to the Regional Director's report and recommenda-
tions as to the challenged ballots and we therefore adopt them.
3109 NLRB 1270
THE DE VILBISS COMPANY 047
Relations Board is absolutely Neutral and Impartial." Those em-
ployees who did not receive the second circular at the plant but who
had received the first in the mail were personally served with the
second prior to the election.
The Petitioner and the Employer contend that the second circular,
which they characterize as a "retraction," makes the rule of Allied
Electric Products ' inapplicable in this case and they also urge the
Board to reexamine that rule if it should find the rule applicable.
The Employer and the Petitioner add that the Petitioner was unaware
of the Board's prohibition against circulating a marked sample ballot
when he caused the first circular to be distributed, and that when he
was informed of the Allied Electric rule, he took immediate steps to
neutralize any effects of circulation of the marked ballot.'
The Allied Electric rule was established in furtherance of the
Board's policy to keep the atmosphere surrounding an election. free
from any suggestion of Board partisanship in favor of any party to
an election. The Board has interpreted this rule strictly in subse-
quent cases.' In Superior Knitting Corporations the employers, con-
tended that the Allied Electric rule was not applicable because among
other things : (1) Immediately prior to the distribution of the marked
sample ballots the employers stressed in a speech the impartial role
of the Board in conducting representation elections; and (2) the
employers marked the ballot in the presence of the employees. The
Board in applying the rule in that case said, "Because of this Board
policy not to permit the reproduction and distribution of marked sam=
ple ballots, the application of the Allied rule is not dependent on
whether the employees were in fact, misled by the altered ballot. In
view, therefore, of the Board's rule that the reproduction and distribu-
tion of altered sample ballots are, per se, sufficient grounds for setting
aside the election, we shall set aside the election ... and direct that a
new election be conducted."
In view of these decisions and upon the facts in the instant case,
we find, in accordance with the recommendations of the Regional Di-
rector, that the Petitioner by circulation of the marked ballot inter-
4 The Employer also contends that the Regional Director 's report should be set aside
because of the personal bias and prejudice of the Regional Director , and alleges in support,
of this contention that after the original hearing in this case, held on May 23, 1955, the
Regional Director caused the hearing officer's report to be held up for more than 10 weeks
before it was forwarded to the Board . We find no merit in the Employer 's contention.
Moreover , the Board 's records reveal that although some copies of the hearing officer's
report were received and stamped August 2, 1955 , the hearing officer's original. report
was in fact immediately forwarded to the Board and received by it on May 23, 1955.
5 Boro Wood Products Company, Inc., 113 NLRB 474, Wallace d Tiernan, Incorporated,
112 NLRB 1352; Superior Knitting Corporation and Alto Manufacturing Corporation,
112 NLRB 984.
6 Supra.
387644--56-vol. 114-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with the employees' freedom of choice in the election, and we
shall direct that the election be set aside and a new election held.
[The Board set aside the election held on August 25, 1955.1
[Text of Second Direction of Election omitted from publication.]
MEMBER MuRnobn took no part in the consideration of the above
Supplemental Decision, Order, and Second Direction of Election.
Olin Mathieson Chemical Corporation and International Asso-
ciation of Machinists, AFL, Petitioner. Case No. 1-RC-4172.
November 9, 1955
DECISION AND DIRECTION OF ELECTION
'Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a, hearing was held before William I. Shooer, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. International Association of Machinists, AFL, is a labor organi-
zation claiming to represent certain employees of the Employer.
The Employer moved to dismiss the petition herein on the ground,
inter alia, that the Connecticut Federation of Labor is a labor organi-
zation within the meaning of the Act, and that it must comply with the
filing requirements of Section 9 (f), (g), and (h) of the Act. The
record shows that the Connecticut Federation of Labor assisted in the
organization of the Employer's employees. Its secretary-treasurer,
Rourke, testified that it exists for three purposes : (1) organization of
employees, and placing them in international unions; (2) legislative
work; and (3) publicity work. Section 2 (5) of the Act defines "labor
organization" as an organization "... which exists for the purpose,
in whole or in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions
of work." The factual information adduced at the hearing shows
clearly that the Connecticut Federation of Labor is not a labor or-
ganization within the statutory definition. Accordingly, it is not re-
quired to comply with the filing requirements of the Act in order for
the Petitioner to be deemed in full compliance.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
' See The Magnavox Company, 111 NLRB 379, 382.
114 NLRB No. 145.